Myths and Facts: The Enterprise and Regulatory Reform Act 2013 and how it will affect photography
Written by duckrabbitYesterday I posted why I think some of the rhetoric around the new Enterprise and Regulatory reform act was misleading and inaccurate to say the least. This scaremongering, particularly by the campaign group STOP43 has caused a lot of concern to photographers.
The IPO (intellectual property office) has put out the following myth-buster in relation to how the new act will affect the use of photography. At the bottom they also outline how the law will be applied. It’s worth noting that I’m sure STOP43 will dispute the IPO’s interpretation of the law and it’s important that groups like STOP43 properly scrutinise any new copyright policy. That said they might stand a better chance if they discussed what was actually being proposed as opposed to what seems to me to be a warped reading of the bill.
Myth – the provisions remove the automatic right to copyright for owners of photos posted online
Fact – The powers do not remove copyright for photographs or any other works subject to copyright.
Myth – anyone can use a photo they have found on the internet as an “orphan” if they cannot find the copyright owner after a search
Fact – A licence must be obtained to use a work as an “orphan”. This will require the applicant to undertake a diligent search, which will then need to be verified by the independent authorising body which the Government will appoint before a work can be used.
Myth – works will have their metadata stripped and be licensed en masse as orphans under the Extended Collective Licensing provisions
Fact – the Orphan Works scheme and Extended Collective Licensing (ECL) are separate and the orphan works scheme is about licensing of individual works.The Government will have no power to impose ECL on a sector, and the safeguards included in the scheme mean that ECL is only likely to be an option where there is strong existing support for collective licensing. Any rights holder who is worried about how their work could be used under an ECL scheme will always retain the ability to opt out.
It is unlikely that ECL will be an option for photography where there is a strong tradition of direct licensing: there is no collecting society for photographers in the UK, so no application for an ECL is feasible at present.
Myth – anyone will be able to use my photos for free if they cannot find who owns them?
Fact – If a work is licensed following the verification of the diligent search, there will be a licence fee payable up-front for its use. The fee will be set at the going rate.
Myth – anyone can use my photos without my permission
Fact – Anyone wishing to use a work as an orphan must first undertake a diligent search for the rights-holder which is then verified with permission to use the work granted by the Government appointed independent authorising body. If the work is not genuinely orphan then the rights-holder should be found, if the search is not properly diligent, no licence will be issued.
Myth – the Act is the Instagram Act
Fact – Given the steps that must be taken before an orphan work can be copied, such as the diligent search, verification of the search and payment of a going rate fee, it is unlikely that the scheme will be attractive in circumstances where a substitute photograph is available. The rate payable for an orphan work will not undercut non-orphans.
Myth – a company can take my work and then sub-license it without my knowledge, approval or any payment
Fact – The licences to use an orphan work will not allow sub-licensing.
Myth – the stripping of metadata creates an orphan work
Fact – the absence or removal of metadata does not in itself make a work “orphan” or allow its use under the orphan works scheme
Myth – I will have to register my photos to claim copyright
Fact – Copyright will continue to be automatic and there is no need to register a work in order for it to enjoy copyright protection.
Myth – the UK is doing something radical and unprecedented with the Orphan Works powers
Fact – Other jurisdictions already allow the use of orphan works. The UK powers are largely based on what happens in Canada – which has been licensing orphan works since 1990.
So how will the Orphan Works scheme work?
Any person wishing to use an orphan work will need to apply for a licence to do so and payment for the licence payable up-front at the going rate. As part of that process they must undertake a diligent search for the
rights-holder which will then be verified by the Government appointed independent authorising body. Only then will a licence to use the orphan work be issued. Licences will be for specified purposes and subject to a licence fee which is payable up-front at a rate appropriate to the type of work and type of use. The licence fee will then be held for the missing rights-holder to claim.
Author — duckrabbit
duckrabbit is a production company formed by radio producer/journalist Benjamin Chesterton and photographer David White. We specialize in digital storytelling.
Discussion (11 Comments)
Stop43 have been in meeting with the IPO for the past few years … many many meeting can get the exact figure if that helps. Feel that you are taking the official government line here which is not like this blog.
Stop43 are just a bunch of photographers that got together to get a fair deal.
The IPO is a for profit Government Agency Not a Government Dept (I am willing to be put right on this)
The IPO’s attitude towards photographers has not been very helpful over a number of years.
As with all these issues. They is a larger untold back story.
best as ever
Justin
Hi Justin,
I guess my point is whilst STOP43 are putting out such propaganda how can they have any credibility? How can they be taken seriously?
I think the IPO directly answers many of the points Stop43 have been making. If on the other hand the IPO are incorrect this needs to be pointed out.
Ducks
could you gives this equal play as with the above ?
http://www.theregister.co.uk/2013/05/03/instagram_act_explained/
I understand this is your space. Thought I’d ask
best
Justin
“I think the IPO directly answers many of the points Stop43 have been making.”
If you had followed the debate before, you would know that the IPO are desperately trying to avoid the points that Stop43 have been making. Stop43 and other photographers’ organisations have been making the same points again, and again, and again, in consultations, submissions, meetings, campaigning. And all the IPO have been able to do is ignore it and pump out obfuscation.
So to take yet one example among many, it has been pointed out to the IPO that the proposals are illegal under international law. Clearly, under Article 9 of Berne. The IPO haven’t even attempted to address this, their strategy has been simply to ignore it.
Their strategy is to make up ‘myths’ most of which aren’t actually being said, and answer them with half-truths. Miss out the most important bit.
In their list above, they typically sidestep the destruction of the value of copyright – the nature of copyright as the exclusive right to allow the copying of your work as enshrined in Berne, with statements that technically copyright will continue to exist. Which is not the point. Everyone is clear that copyright technically continues to exist, what is equally clear is that because it no longer gives the exclusive right to license your work, it has been degraded – and copyright as we know it no longer exists.
If you are complaining that Stop43’s headlines are a simplification – well of course they are. So are the headings of your blog posts. So are the IPO’s ‘Myths and Facts’ – there myths are not myths and their facts are not facts. Your blog heading ‘why taking your photos of the net is possibly the worst thing you can do if you want to retain copyright’ is hyperbole, a simplification, and in the end probably just wrong. That is the nature of short headlines.
‘IPO are desperately trying to avoid the points that Stop43 have been making’
I am not surprised when STOP43’s strategy seemd to be acting like paranoid scaremongers, comparing Cameron to Stalin (see Godwin’s law) and declaring the media is about to end!
‘If you are complaining that Stop43?s headlines are a simplification – well of course they are. So are the headings of your blog posts’
Yes Simon you are right but I’m not a lobby group trying to win an argument by preaching photogeddon.
Nah, you’re just a blogger posting about stuff that you don’t really understand… what’s new?
A blogger trying to generate a bit of publicity by telling professional photographers that you know more about orphan works legislation and how it will effect their businesses than they do.
You don’t have a clue about professional photography… or copyright… or Orphan Works.. or the IPO…
Why don’t you let the photographers who work with you post on this subject?
Or at least do a bit of research about the way our Government works before posting on this subject again.
You don’t even need to concentrate on the freetard aspects of these issues. Take a look at the plight of the Chagossians as an example of how legislators will do whatever is most convenient for them and their pals – no matter how immoral.
Or how not campaigning about how sly and venal our lawmakers are usually leads to years of misery for victims of their piss-poor lawmaking — an example from last week: http://www.private-eye.co.uk/sections.php?section_link=hp_sauce&issue=1339
Hi George,
‘A blogger trying to generate a bit of publicity by telling professional photographers that you know more about orphan works legislation and how it will effect their businesses than they do.’
Actually I just pointed out how ill founded the prediction is that the world is going to end because of this act but if it gives you purpose in life to believe in photogeddon please do ignore what I wrote.
‘You don’t have a clue about professional photography… or copyright… or Orphan Works.. or the IPO…’
No, because clearly I don’t run a successful business that deals with photography on a daily basis …
‘Why don’t you let the photographers who work with you post on this subject?’
Because I locked them up in a cave and I only let them out to take photos (or maybe they can post but haven’t yet?)
‘Or at least do a bit of research about the way our Government works before posting on this subject again.’
Good idea. I’ll apply for an internship.
Like you I’m all for beating up on the government when they get policy wrong but unlike you it seems I don’t believe the right way to go about it is making things up so to scare people. As a strategy it doesn’t seem to be working. Maybe you’re too blinkered to notice?
“Like you I’m all for beating up on the government when they get policy wrong but unlike you it seems I don’t believe the right way to go about it is making things up so to scare people.”
What “beating up on government” have you done then Benjamin?
People who whine about the words that activists use usually turn out to have done very little.
I’m not interested in how successful your business is or whether it uses photography – you, personally, know stuff all about this subject.
Hi George,
you started your lack of anything coherant to say about the post with these words
‘Don’t waste your time Simon.
The loud and uninformed views of middle class, ex-BBC know-it-alls are available on hundreds of new media company blogs.
They love the sound of their own voices enough already. Don’t encourage them.’
Why didn’t you take your own advice?
Its perplexing why you feel so threatened by a middle class media intern that you have to keep coming back with sillier and sillier comments that fail to address a single point in the post.
(it was hard to go downhill from your first comment but you managed it with aplomb).
‘What “beating up on government” have you done then Benjamin?
People who whine about the words that activists use usually turn out to have done very little.’
Oh dear.
You may like to spend your Saturday nights comparing CV’s with people. I know some people get off on that kind of thing. Me, I’m off to wash my hair.
To repeat I just pointed out how ill founded the prediction is that the world is going to end because of this act but if it gives you purpose in life to believe in photogeddon please do ignore what I wrote.
Like you I’m all for beating up on the government when they get policy wrong but unlike you it seems I don’t believe the right way to go about it is making things up so to scare people. As a strategy it doesn’t seem to be working. Maybe you’re too blinkered to notice?
“comparing Cameron to Stalin”
I wouldn’t compare Cameron to Stalin, but as far as Bolshevik policies and the IPO go, there are a lot of similarities, and the mentality is surprisingly close. I mean that not in a hyperbolic sense, but in a literal one.
Orphan works is a form a semi-nationalisation of private property. The emergence of the internet has brought out quite a lot of utopian, private-property-is-no-longer-necessary thinking. Slogans like ‘information wants to be free’ and such like. The polar opposite of more (in my view) more sensible ideas like: the internet is an incredible resource and tool – how can we make it accessible so that companies can do business on it, people and businesses can share their property while being adequately protected? This approach I believe will come in time, but at the moment there is a post-revolution euphoria where many believe that (in effect) private property is redundant, and that an economy can be built by living off exploiting other people’s assets – until they run dry. Just like in post-revolutionary Russia.
If you have watched the BBC Google and the World Brain documentary, you can see where this thinking is coming from, and it is driven by the likes of Google.
I’m not saying that the IPO have totally bought into Marxist utopian theories, but you can see the direct implementation of these utopian ideas – when Cameron commissioned the Hargreaves Report, he expressly directed them to look at how to encourage a company like Google could happen in the UK. A company which gets its revenue from exploiting other people’s IP. They appointed a former director of the BBC to do the report – the BBC of course being one of the key companies campaigning to be able to exploit other people’s IP, and one of the worst offenders at stripping metadata.
The results of the report were pretty much a foregone conclusion, and it’s hardly surprising that the IPO have adopted a strategy of sticking their fingers in their ears and bunkering down.